FACTS againest MYTHS APRIL-MAY-2003
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- FACTS againest MYTHS APRIL-MAY-2003
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VIKAS ADHYAYAN KENDRA
APRIL - MAY 2003
INFORMATION BULLETIN
Official Secrecy or the Peoples’ Right to Know:
The Myths behind “Freedom of Information”
“...The single most important cause responsible for corruption in society was the barrier to information..."
— P. B. Sawant, Former Chief Justice, Supreme Court of India
'“When a society has chosen to accept democracy as its creedal faith, it is elementary that its citizens ought
to know what their government is doing...No democratic government can survive without accountability and
the basic postulate of accountability is that the people should have information about the functioning of the
government. It is only if people know how government is functioning that they can fulfill the role which
democracy assigns to them and make democracy a really effective participatory democracy".
— S.P. Gupta vs. Union of India (1981)*1
COMMENT
he right to acquire knowledge and the right to know is common to all cultures and civilizations ever
since language became a medium for self-expression and communication and empowerment. It is
an inherent trait and need. Hence, a natural right. A constitution or law does not confer it. Endowed
with an intellect humans have the ability to observe, analyse, reason, comprehend and acquire
knowledge. This is illustrated by the ancient legends of Prometheus of Greece and Nachiketha in
Indian mythology. Prometheus went at great length and at great personal cost in pursuit of knowledge.
Similarly, Nachiketha confronted Yama, the god of death — spurning offers of untold worldly riches
—to get answers to fundamental questions. However, the systematization of the methods of inquiry
into knowledge originated in Ancient
Greece where Socrates (469-399
BC) raised his famous questions
and his well-known inquiry mode,
the Socratic method. Socrates was,
however, sentenced to death by the
Establishment for ostensibly
imparting knowledge considered
subversive and “anti-State"; for
being a corrupting influence on the
youth of Athens leading them
astray. Following the Dark Ages
five centuries later, during the
Renaissance, the spirit of inquiry
was revived, laying the foundation
of modern science and civilization.
This spirit of inquiry is today a
global human heritage.
Ensuring Secrecy or Transparency?!
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against MYTHS - April ■ May 2003
FOR PRIVATE CIRCULATION ONLY
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The Indian legal system, a British colonial
legacy, has however been vicariously
influenced by the US First Amendment. And
the American Freedom of Information further
hewed Indian values of information law
through the judicial fraternity. The Supreme
Court of India, in the very first case that arose
for consideration under Art.19(1 )(a) of the
Constitution in Romesh Thappar v. State of
Madras, acknowledged the influence of the
US First Amendment in the incorporation of
this freedom in the Constitution.
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The inquiry process is a crucial to, and a defining factor
in how information is gathered, how it is processed
and how it is diffused. But it begs the question:
information for whom? And for what purpose? For,
knowledge in India had always been the monopoly of
a privileged minority, the nobles and the brahminical
high caste. In its operative part, then, the Indian tradition
was not dissimilar to mainstream Judeo-Christian and
Islamic belief systems. The disparity between those
who had free access to knowledge and those who
didn't was vast. To address it, saints, rishis and
troubadours - sufis and bhakthipoets for instance —
had had to intervene. Their aim was to demystify and
democratise the sacred knowledge for the benefit of
all. Their success was however limited.
By the second half of the 18,h and 19‘h century
knowledge based on the concept of liberty was
formalized as a right. As such, liberty became the
beacon and rallying call for the revolutions in the North
and a dominant feature in the writings of John Lock in
1689 when the English Bill of Rights was adopted.This
document in turn led to the emergence of ideas of
“civil liberty”, “natural rights”, and “rights of man”. Since
then discourses on liberty have been marked by an
attempt to achieve a balance between state power and
individual liberty. The ideas got codified in documents
like the American Declaration of Independence (1776),
the French Declaration of the Rights of Man and the
Citizen (1789) and the American Bill of Rights (1791).
By the end of the 19,h C, the concept of liberty implied
the freedom of the individual from external pressures
imposed by the State. In the last century the focus on
the doctrine of “natural rights” shifted to the legalistic
interpretation of liberty. Since then, all modern
democracies have adopted constitutions based on the
inalienability of civil liberties and the principles of equal
rights and justice.These legal tenets were enshrined
also in the Indian Constitution (on November 26,1949
and enforced in January 1950) with liberty of thought,
expression, faith and worship as the four pillars of
Indian democracy.
The Constitution opened a vision of democracy and
concomitant right to know as well as the responsibility
of the State to facilitate this right to be informed of all
FACTS against MYTHS - April - May 2003
facts, which affects the common weal. Paradoxically,
the 'corpus juris' of India — affected by legal sanctions
e.g. the statutory amendment in 1986 to the
Commissions of Inquiry Act, 1952 - empowers the
government in its discretion to reveal or not to reveal
the report of a public inquiry. Aberrations like these
and those like the Official Secrets Act (OSA), Section
123 and 136 of the Indian Evidence Act, the Atomic
Energy Act (1962) began to be questioned as they
were seen as potential threats in sabotaging the very
democratic framework of the country. For instance the
suppression of the democratic rights and civil liberties
vis-a-vis right to information during the Emergency
(1975-77). This led to the demand for access to
information and against acts of secrecy. Information
on vital issues continues to be suppressed but shapes
the overall administrative ethos in the bureaucratic
apparatuses and institutions of even the armed forces
and the judiciary, dominated by the upper caste
Brahmins. Governments both at the Centre and State
indulge in secrecy and intrigue, deception ar^h
derogation at all levels. To conceal the acts W
corruption, scams, etc., the ossified colonial legal
instrument ‘The Official Secrets Act 1923" is often
invoked. Historically, the Brahminical system
appropriated all knowledge to itself and denied to
others, i.e. non-Brahmins.This hegemonic control by
the Brahminical elite continues to this day.
Mystification, seclusion and exclusion molded into
caste hierarchies thus continues to characterize this
form of appropriating knowledge. Indian systems of
knowledge have indeed become so exclusive that it
has been lost even to its own custodians.
Public concern on government corruption has since
increased the demand for greater transparency, ending
in a claim for openness in government functioning and
in the demand for the Right to Information Act. The
demand against the Official Secrets Act (OSA) is an
illustration, raised in the early decades of Independence.
In recent times, the issue of the right to informati^
has been exacerbated with the restructuring of the
public sector through privatisation ideology. The State
in withdrawing increasingly from the public arenas —
and handing them over to the private sector e.g. private
firms, NGOs, etc.—threatens to undermine freedom
of information laws. The Bhopal gas disaster, the
Bofors scandal are reminders that leaving the private
sector out of the transparency and public
accountability-net could lead to unmitigated disaster.
Besides, citizens are least likely to have a right of
access to information held by the private sector. In
the North, Governments are beginning to recognize
citizen’s right to access and correct personal
information, collected by private firms, as a way of
discouraging unfair treatment and unjustified intrusions
in personal privacy, and is now permitted under data
protection laws adopted throughout the EU and in
Canada. Some governments have also recognised
broader rights of access to information held by private
2
The struggle for the freedom of information in India has strong legal and constitutional
underpinnings. India is a signatory of the Universal Declaration of Human Rights and the
International Covenant on Civil and Political Rights, which also protects the right to information.
The Indian Constitution’s Art.19 (1 )(a) guarantees that “all citizens shall have the right to freedom
of speech and expression”. The Supreme Court Of India has, in several landmark decisions,
interpreted this right to include the right to information as well. For instance,
❖ In Bennett Coleman & Co. vs. Union of India, a Times of India group, challenged the
government’s policy of restricting the availability of newsprint. In its decision, favoring the
petitioner, the Supreme Court declared that “freedom of speech includes within its compass
the right of all citizens to read and to be informed. A dissenting opinion in the same case
noted that “the fundamental principles involved here is the people’s right to know”;
In State of UP vs. Raj Narain, A case in which the respondent had demanded information
relating to the security expenses of the Prime Minister, Indira Gandhi, the Court stressed the
importance of the public’s right to know as a deterrent to oppression and corruption;
❖ In S.P. Gupta vs. Union of India, the Court declared that “disclosures of information in regard
to the functioning of Government must be the rule, and secrecy an exception justified only
where the strictest requirement of public interests so demands
♦♦♦ In 1989, in a writ petition involving M. Shah, a noted consumer activist, and the LIC of India,
the court ruled that no official medium of information could transmit one set of views without
also providing for the expression of alternative views, thus widening the range of opinions
presented to the public.
The earliest dissent against the “Official Secrecy Act, 1923” was in 1948 by the Press Laws
Inquiry Committee and in 1952 by the Press Commission. The Government of India was happily
covered by it and even encouraged to indulge in acts which later made the Shah Commission of
Inquiry to note: “It has been established that the more the effort at secrecy the greater the
chances of Abuse of authority by the functionaries”.
In 1977 the Janata Party promised to promote openness in Government in its manifesto. The
Working Group that was established for this very purpose however came to the conclusion that
it would be prudent to maintain secrecy on some areas like nuclear power, defense apart from
external security. The group, however, suggested that an exception could be made in the case of
‘developmental news’ so that the masses become more aware of developments in the country.
The overall recommendations was that there is nothing in the Official Secrets Act, 1923, which
stood in the way of the flow of necessary information to the public! Above all, the Report was not
made public. The country was thus back to 1923 — to square one - and is content to regulate
its communication system with ‘we, the people of India’ along with the network of the colonial
Official Secrets Act of 1923.
❖ Advocacy for the right to information soon stepped up in a number of ways and continued
till the late 80s and early 90s when the Consumer Education and Research Centre (CERC),
Ahmedabad, raised the issue in the context of consumer rights advocacy and access to
government information. The first initiative to legislate upon the Access to Information was
by the State of Karnataka in 1988, known as the Karnataka Freedom of Press Bill. The entire
campaign acquired a dynamic impetus when grassroots peoples’ movement, the Mazdoor
Kisan Shakti Sanghatana (MKSS) in Rajasthan launched a mass struggle for the right to
information in the BhimTehsil in the districts of Pali, Ajmer and Rajasmad. In 1994 the MKSS
succeeded in forcing the State Government to publish the Panchayati Raj Rule, 1966, on
December 3,1996. Without such legislation, the benefit of the Constitution (73rd Amendment
Act, 1992) devolving powers to panchayats would not be able to be utilised for the benefit of
the common people.
❖ At the national level, the campaign was revived by the Press Council of India under the
Chairmanship of Justice P.B. Savant resulting in a draft of Freedom of Information Act, 1997
submitted to the Government of India who set up a committee headed by Shri H..D. Shourie.
On December 3, 2002 Parliament passed the Freedom of Information Bill. The right to
information is the centrifugal point for access to myriad other basic human rights such as
health, food, livelihood, shelter, environment, personal safety and security, justice, even
essential services like roads, transport, etc. In the absence of this right it is not possible for
workers to succeed in getting fair wages; women gaining even a semblance of equality; and
the disabled seeking relief and rehabilitation.
FACTS against MYTHS - April - May 2003
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agencies. South Africa’s Promotion of Access to
Information Act, adopted in 2000, implements a
guarantee in its 1996 Constitution that citizens will have
a right to access to information held by another person
“that is required for the exercise or protection of any
rights." The British freedom of information law includes
discretion to include private organizations. Similarly, a
proposed Jamaican law would include business that
performs critical public services or hold a monopoly
position in the marketplace.
Recognising of the danger in State concealment of
information, the UN at the Conference on Freedom of
Information drafted the Universal Declaration of Human
Rights in 1948 and adopted general principles for
promoting and protecting freedom of information in
Art.19. Since then, the Right to Information has
gathered momentum and enacted by a number of
countries. Sweden, however, was the first to enact this
law even prior to this initiative, way back in 1766! Other
countries that have enacted this law include Finland
(1957), Norway and Denmark (1970), US (1974),
Canada (1980), South Africa (1987), Canada, Australia
(1989). In India seven State Governments have passed
their own versions of RTI Acts: Tamil Nadu (1997),
Delhi, Goa (1997) Karnataka, Assam, and M.P.
providing its citizens access to its information. On
March 10,2003 the Maharastara State Legislative
Assembly also passed the Right to Information bill.
Control of information is evidently a potent tool in the
hands of Governments. It is crucial element in the 3way relationship between information itself, the State
and the individual. In each case the role of the state
has been to intervene in the chain of communication
between the source and the user of information.
Freedom of information is the least widely understood
and the least developed area of the three. This is
significant, for freedom of information can only be
beneficial to citizens if it is considered that a wellinformed citizen derives benefits from the information
and is acquired.The State, and those who constitute
the government and bureaucracy, is exposed wherever
there is open access to information. Little wonder then
the bureaucracy in particular is most allergic in parting
with information and indulge in subterfuge and intrigue.
It is essential to therefore be both vigilant on the state
control of information and expose attempts to conceal
especially information that is of vital public concern
by exposing the sacrosanct envelope of “Official
Secrets" and its long-hidden contents into public
domain as well as the major loopholes in the Freedom
of Information Act.
The right to information, however, already exists - in
the form of a fundamental right recognised by the
Supreme Court in several decisions; considered as
the obverse side of the Freedom of Speech and
Expression guaranteed under Art.19 (1) of the
Constitution! Moreover, it is also inherent in the
guarantees of the Right to Life and Personal Liberty
and the Right to Equal Protection of Law contained in
the Constitution.
The Act casts the burden on the citizen to ‘secure
access to information’, leaving out the most important
element of the duty of the state which is to effect pro
active disclosure of information!
❖ The introductory statement also hedges in the right
by the words ‘consistent with public interest’which
is very loose and gives unlimited discretion to
public authorities and administration. What is the
public interest that is sought to be protected? Who
is to decide whether a certain request for
information is consistent with public interests ajx
not?;
❖
‘Appropriate Government’ and ‘Competent
Authority’ do not consider any aspect of local
bodies. All power to implement the right to
information or freedom of information stops at the
state level.This not only creates definite practical
problems in implementation but also goes against
the very spirit of openness and decentralization
of authority that the law must seek to create. This
will result in the law failing to address the needs
of large masses of people whose day-to-day
concerns are with local and village level bodies.
The scheme of definitions also imply that NGOs not
‘substantially funded’ by government, and by
corporates, are excluded from the purview of the Act,
which is contrary to the demands of mass movements.
Further, the scheme of Section 8 makes the operation,
of the Act completely dependent on executiWj
discretion. It is difficult to understand the rationale, for
instance, of but take decisions on matters affecting
the public. Under this clause, for instance, the
government could refuse to divulge information on
interstate trade, or the sharing of waters, etc., which
are vital matters relating to the public. Or, in the case
of Kerela where the government is secretive on vital
information, demanded by the peoples’ movement,
over Coca Cola’s overexploitation of local water
resources at the expense of the needs of local
communities.
MYTH: The FOI Act strengthens the democratic
rights of citizens by providing freedom and access
to information under the control of public
authorities.
Finally, the wide import of the words ‘prejudicially
affect’ would always be construed to mean ‘being
uncomfortable for the government”, (cf: related
argument on page 7)
FACT: This claim creates the illusion that that this law
is actually creating a new right in favour of the citizens.
MYTH: The colonial Official Secrecy Act, 1923 was
withdrawn following Independence.
FACTS against MYTHS - April - May 2003
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FACT: On the contrary! The colonial Act was amended
— not withdrawn! The post-colonial governments had
made only terminological changes in this Act — to
conform to the terminology of the Indian Constitution.
Otherwise, the basic structure and spirit of the colonial
Act remained intact.
These substantive amendments were first made in
1967 when the Official Secrets (Amendment) Bill was
introduced in the Rajya Sabha on June 23 and passed
on August 7,1967. It was introduced on August 12 —
in less than two hours - in the Lok Sabha but without
it being referred to any select committee and without
much publicity. The citizens’ right to know about the
functioning of the Government failed to generate any
great public debate. The Lok Sabha, vividly aware of
the danger of spying, showed little awareness, much
less understanding, of the wider implications involved
in keeping government operations under a thick cloak
of secrecy. Instead, it opted for a role destined to keep
it poorly informed and therefore weak in its relationship
frith the executive. The only dissenting voice was in
the Rajya Sabha by Bhupesh Gupta of the CPI.
In 1969, the V.P. Singh Government that had made the
Bofors scandal a central plank of its campaign strategy
came to power promising a more open government
based on the right to information. Ironically — the
promise to also increase the areas of governmental
openness — was ultimately status quo-ist. It found
nothing in the Act which could be construed to obstruct
the flow of legitimate information to the people!
The policy of political parties like the Congress (I)
Government on this issue was highly discouraging.
There was no evidence of any attempt to restrict the
area of official secrecy. Instead, a ‘decommunicating’
process was very much at work. The withdrawal from
circulation of the 3-Volume Report of the Shah
Commission of Inquiry (1978) thus de-recognised the
citizens’ right to access’to official information.
tflYTH: The enactment of the right to information is
victory for the people in that it makes people's
power a reality, enabling ordinary people to get
specific information freely on demand from the
authorities.
FACT: First and foremost, the mere enactment of the
bill will not bring about freedom of information! For
instance,
Politicians are not prepared to provide information
on their criminal records, assets and educational
qualifications to enable voters to make an informed
choice on implementing the freedom of information
regime honestly. To illustrate: the judiciary is
constitutionally autonomous. The petrol pump
dealership scam illustrates how politicians can
subvert it. Law and order environment is legally
the responsibility of the magistrate and police.
Gujarat is the latest instance of large-scale
FACTS against MYTHS - April - May 2003
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Practice of Secrecy
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Secrecy was a common practice in all
cultures and civilizations since ancient
times. Max Weber (1864-1920) had
observed; ‘Every bureaucracy seeks to
increase the superiority of the
professionally informed by keeping their
knowledge and intentions secret.
Bureaucratic administration always tends
to be an administration of ‘secret
sessions’: in so far as it can, it hides its
knowledge and actions from criticisms.
The treasury officials of the Shah of Iran
made a secret doctrine of their budgetary
art and even used a secret script. The
official statistics of Prussia, in general,
make public only what cannot do any
harm to the intentions of the powerwielding bureaucracy. The tendency
towards secrecy in certain administrative
fields follows their material nature:
everywhere that the power interests of the
domination structure towards the outside
are at stake, whether it is an economic
competitor of a private enterprise or a
foreign potentially hostile politically, we
find secrecy. The pure interest of the
bureaucracy in power, however, is
efficacious far beyond those areas where
purely functional interests, make for
secrecy. The concept of the “Official
Secret” is the specific invention of the
bureaucracy, and the bureaucracy as this
attitude fanatically defends nothing, which
cannot be substantially justified beyond
these specifically qualified areas. In facing
a parliament, the bureaucracy fights every
attempt of the parfement to gain
knowledge by means of its own experts
or from interest groups. The so-called
right of parliamentary investigation is one
of the means by which parliament seeks
such knowledge. Bureaucracy naturally
Welcomes a poor informed and hence a
powerless parliament at least in so far as
ignorance somehow agrees with the
bureaucracy’s interests.
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subversion of the rule of law by politicians.
❖
The Act does not cast a strong enough duty on
government to reach certain kinds of information
to people who are not likely to exercise their
freedom to go and ask for it, although it may have
a vital bearing on their lives. Secondly, it provides
a right to appeal to officials or public bodies on
the question of accountability. Worse still, it gives
a right to appeal once to some undisclosed
authority and then again to the state or Central
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government. In short, while a person who may be
severely affected by non-disclosure of information
in spite of having a legal right to it would be running
from pillar to post, the ‘babu’ who created the
situation would continue to remain in his position
and continue to draw his salary. Not satisfied with
containing an array of exemptions to giving
information in Section 8, Section 9 contains
additional grounds on which information can be
refused and one of these is, that the information
is available in published material available to the
public. Obviously, the government’s obligation
would end with ‘publishing’, or worse still, getting
published through private publishers, any
information. The invisibility of official gazettes,
manuals, and reports, coupled with the high price
of private publications, indicates the extent of
access available.
MYTH: Disclosures of especially sensitive
information and documents to the public will
endanger national interest e.g. national security and
even demoralise honest public servants.
FACT: This is a specious claim that cannot be availed
of. To do so is to put under the carpet the misdeeds of
concerned authorities.
‘The objection of granting immunity to documents of
this kind is to ensure the proper working of the
government and not to protect the ministers and other
government servants from criticism. It is only through
exposure of its functioning that a democratic
government can hope to win the trust of people” (State
of UP vs. Raj Narain (1975) 4 SCC 428)5
Citizens in a democracy are entitled to know as to
how the Government and its staff is acting on their
behalf, or performing in their official capacity. After all,
citizens are the ultimate sovereign in this country and
are entitled to know every act of their representatives.
The right to know, though not absolute, is a factor which
should call for caution, when secrecy is claimed for
transactions which can, at any rate, have no
repercussion on public security.
However, some exemptions are definitely legitimate.
Any information that has to be withheld in the interests
of the security of the country, etc., must certainly be
exempted. But often these exceptions are so vast that
they defeat the very purpose of this legislation. Further,
problems arise only when this provision of exemptions
is used to protect vested interests. For example to
protect middlemen involved in corrupt defense
purchase deals. It is one thing to say that national
security interests must be totally protected to which
there is no objection. However, it is a different thing to
say that information which may lead to the exposure
of corruption on defense purchase deals should be
withheld. There is absolutely no justification to exclude
the latter information. On the contrary, national security
gets strengthened when such information is obtained
FACTS against MYTHS - April - May 2003
to expose corrupt defense deals.
Like the freedom of speech under Art. 19 the Supreme
Court has formulated many rights of citizens, which
are not specifically mentioned in any of the fundamental
rights of the Indian Constitution. Thus, the Supreme
Court has broadened the sweep of Art. 21 which
guaranteed that “no person shall be deprived of his life
or personal liberty -except according to procedure
established by law”.
The Supreme Court itself debunked the argument e.g. in the S.P. Gupta case — that the bureaucracy
will be demoralised if they parted with information to
the public. It pointed out that an honest bureaucrat
would not be deterred over any disclosure. On the
contrary, it would be more likely to deter a dishonest
official from a dishonest act or misdemeanor. At the
same time, however, there must be provisions for the
protection of those conscientious officials (whistle
blowers) who go out of their way io be transparent in
the larger public interest. Their jobs must also bo^
protected.Thus, no democratic government can declared
a document as “CONFIDENTIAL” without proper
justification. Such an act will always be void and
untenable.
MYTH: Secrecy of official matter in no way
adversely affects society or everyday social life of
citizens.
FACT: On the contrary! The practice of concealment
entails grave consequences both for the polity and
the wider society. In the absence of authentic
information being made available to the citizens wild
rumors, for instance, gain currency and even credence.
Specifically, it
❖ is apt to foul the atmosphere and creates a
communication gap between the Government and
the people threatening in the long run the very
legitimacy of governmental actions;
❖
secrecy covers up possible administrative lapsed
and mis-deameanours and thus has the effect of
even promoting downright arbitrariness in public
administration;
❖
It also deprives the citizens of opportunities of
educating themselves on issues of contemporary
significance.
With secrecy, there is no feedback available to it onz
the reactions of the people. Democracy without a free
flow of information relating to official matter reduces
itself to the level of a farce. There are vast areas of
public life that is concealed from public life by the
bureaucrats’ labeling of official documents as
“confidential”, “top secret” or “classified” which can in
no way be justified as legitimate.
The Official Secrets Acts has emerged as a device
encouraging the mechanical application of its
6
provisions by civil servants. The secrecy rules are being
applied blindly and thoughtlessly. This may be inferred
from the fact that even the records of the colonial period
continue to be protected under the Act of 1923. The
seriousness with which post-independent India
protects the secrecy of its predecessor’s records is
really abominable. Historical documents and records
relating to information on even such innocuous pursuits
like sports are out of bounds for the public knowledge
as these are “classified" information! Though the
Official Secrets Act provides for the holding back of
routine official files for a period of 50 years this time
limit—itself of questionable validity—is never honored
in observance. The practice in the Government is that
files are cleared for declassification not for every year
but every five years; and thus the 50-year secrecy
rules become fifty-five years in actual practice.
Above all, the Act is a pretext in denying the people
the right to information on various aspects of
Development. This statutory secrecy of official
^formation continues despite guarantee of Freedom
of Information. Secrecy, conspiracy to conceal, plea
of privilege, and immunity claimed against free
criticism are all symptoms of the colonial syndrome
of State safety through official secrecy.
The damage to present day society inflicted by the
legal culture of suppression of information and
punishment for revelation has been unprecedented in
the annals of Indian history.
MYTH: In a country where there is mass illiteracy
the demand for 'openness in government’ under
the Right to Information Act is unrealistic and
meaningless.
FACT: Such claims are old and familiar, and may even
be leveled against democracy itself. The country has
adopted a democracy, which presently operates with
a minimum flow of information to the citizens about
'he workings of the Government. This, in fact, has the
effect of keeping democracy denied. An increased flow
of information about the Government’s ability to
educate the people and facilitate their meaningful
participation in the process of the government and
consequently, make the latter more accountable and
thus raise the level of its functioning. Openness in a
Government enhances the citizens’ sense of pride,
establish democracy and safeguards public interest.
within the government themselves for assistance in
demanding information, as the example of MKSS (cf.
page 3) in Rajasthan demonstrated. The impact of
illiteracy on the efficacy of any new Freedom of
Information regime is thus likely to vary significantly
across states; national literacy figures therefore do not
constitute convincing argument against Freedom of
Information.
MYTH: The enactment of the FOI Bill clears the way
for citizens to get all the essential information from
the authorities without red-tapism or hindrance.
FACT: However, on closer examination of the Bill
reveals
❖
Several provisions for “exemptions" and
“exceptions” and power of sweeping nature, given
to the government, to add to them or interpret them.
Such provisions carry forward some of the tenets
of the OSA by incorporating them here,
notwithstanding that the OSA has been expressly
overridden
The most blatant of these “exceptions” is the list of
defense and security organizations tagged in the end
that keeps them out of the purview of the Act. Even
the states have been given the option of adding their
own security and police organizations to this list.
Another exemption clause is the one allowing the
‘competent authority’ to withhold any information on
the grounds that it interferes with the work of a
government office or involves a disproportionate
expenditure in collecting it. However, the real difference
is in the shift of cultures of the two regimes. While the
OSA had legally perpetuated a culture of secrecy and
corruption and denial of any rights against them, the
FOI Bill brings in an era of transparency and
accountability. And creates valuable rights to usher in
this new era! Above all, the exemptions on access to
information go beyond the limits prescribed by the
Constitution and taken in factors, which are extraneous
to the reasonable restrictions envisaged by the
Constitution!
References
1.
2.
3.
4.
More specific to the point, while illiteracy can undermine
the effective exercise of democratic rights include the
rights to information, it is not clear that the “illiterate"
would necessarily be much better of without an
effective Freedom of Information regime. On the
contrary, the poor and the “uneducated” stand to benefit
from Freedom of Information that enforces
accountability and checks corruption, and improves
the administration of government projects, etc., that
affect them. They could also turn to other non
government agencies, etc., and even bureaucrats
FACTS against MYTHS - April - May 2003
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
Roberts,A. Structural Pluralism and the Right to Know, Man &
Development, December 2002.
Iyer, V.R. Krishna. Freedom of Information, Eastern Book
Company, Lucknow, 1990.
Maheshwari, Dr.S. Open Government in India, Macmillan India
Ltd., Bombay, 1981.
Joshi, A.S. What Rights? What Information? Indian Express,
Mumbai, September 5,2000.
The Right to Information, Lokayan Bulletin, September-October,
Vol.ll, New Delhi,1999.
Right to Information, Combat Law, #6, Mumbai, 2003.
Constitutional Review & Right to Information, Advocacy Internet,
NCAS, #14, Pune, 2000.
Right to Information, Anubhav, February, YUVA, Mumbai, 1997.
Feather, J. The Information Society, Library Association
Publishing, London, 2000.
Rane, M.A. The Right to Know, Indian Radical Humanist
Association, Mumbai, 1998. ,
Campaign for Peoples’ Righfto Access to Information, Advocacy
Update, #10, NCAS, Pune, 1997.
Paul, S.Right to Information on Candidates, Economic & Political
Weekly, #15, Mumbai, 2003.
Wagle, S.S. Quiet Burial of Right to Information, EPW, #21,
Mumbai, 2003.
Freedom of Information Bill, 2000, Vidura, #4, Delhi, 2002.
7
1
Official Secrecy Act
Secrecy especially Government secrecy has a long history. Most governments - the Indian
government is no exception - never formally practice any large measure of openness about its
internal functioning. Way back in 1843 on August 30,1843 the British colonial government issued
a notification instructing its personnel not to communicate any information in their possession.
At that time, some civil servants had been leaking government information to the press. In
August 16,1884 the colonial government issued orders against making public any document,
papers, or information without prior government authoritrisation.
In 1889, Britain passed its first Official Secrets Act, applicable to ‘any part of Her majesty’s
dominions’ including India. In its application to India, the rationale was that secrets were imperial
in nature and thus the statute enforcing it must be applicable to the British Empire.3 The Official
Secrets Bill, 1889 was passed on October 17,1889 during the viceroyalty of Lord Lansdowne at
Simla, away from the press and publicity. The Act applied mainly to naval and military secrets
thus arming itself with drastic powers for preventing their disclosure. The Act was amended in
1904 during the viceroyalty of Lord Curson mainly to muzzle the press. There was however very
strong opposition to the Act by especially Indian members of the government - by Gopal K.
Gokale, Asutosh Mukherjee, Bipin Krishna Bose, T. Morison and Saiyad Muhammad. Gokhale
had demanded wider practice of openness in public administration and defended the freedom
of the press to seek and publish official acts. Despite these protests the Bill was passed by the
Imperial Legislative Assembly.
In 1911, Britain replaced its Official Secrets Act, 1889, by the Official Secrets Act of 1911. As with
its predecessor, the Act of 1911 was automatically applicable to India. There were thus, 3 laws
governing secrecy management in India - the Indian Official Secrets Act, 1889, the Indian Official
Secrets (Amendment) Act, 1904, and the British Official Secrets Act, 1911. The inconvenience of
the law being thus scattered was obvious. Attempts at amendment were deferred till after World
War! (1914-18). In 1920, British enacted the Official Secrets Act, mainly to include the experience
gained during the War. Unlike the earlier Act this Act did apply to India where the colonial army
who demanded a secret act in a bid to mataintain tank supremacy and prevent potential enemies
e.g. the Japanese from possessing this know-how. The (Indian) Official Security Act, 1923 was
enacted despite protests from K.C. Neogi, Hari Singh Gour and K.B.L. Agnihotri. The aim of this
Act was mainly to prevent and punish espionage. Post-colonial India however continues with
the colonial legacy of the Official Secrecy Act 1923.
ts=i
GMO
GMO
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Facts Against Myths is a bi-monthly bulletin offactual
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on caste, creed and gender.
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